Overseas Federation of Teachers and Defense Dependents Schools (Authority decision, May 12, 1986)

Final FLRA decision. The Authority resolves exceptions to an arbitration award. Under 5 U.S.C. § 7123(a)(1), ordinary judicial review is generally unavailable for an order concerning an arbitration award unless it involves an unfair labor practice under § 7116; this decision does not decide one.

Plain-English summary

An arbitrator sustained an agency grievance over a union president’s communications about school employment conditions. The Authority found that the president’s communications to Congress and other officials were protected. It modified the award to remove the portion sustaining the grievance and directing the union to stop that conduct.

Decision snapshot

• Authority: 5 U.S.C. § 7102, 5 U.S.C. § 7211, 5 U.S.C. § 7122(a).
• Outcome: Arbitration award modified to strike restraint on protected communications.
• Key point: An arbitration award cannot curb protected union communications to Congress and other officials.

Full text (FLRA public release)

[ v21 p757 ]

21:0757(94)AR

The decision of the Authority follows:

21 FLRA No. 94

OVERSEAS FEDERATION
OF TEACHERS
Union

and

DEPARTMENT OF DEFENSE
DEPENDENTS SCHOOLS,
MEDITERRANEAN REGION
Activity

Case No. 0-AR-1005

DECISION

I. STATEMENT OF THE CASE

This matter is before the Authority on an exception to the award of Arbitrator Thomas F. Carey filed by the Union under section 7122(a) of the Federal service Labor-Management Relations Statute and part 2425 of the Authority's Rules and Regulations.

II. BACKGROUND AND ARBITRATOR'S AWARD

A grievance was filed by the Activity and submitted to arbitration where the Arbitrator stated the issue as whether the Union violated the Parties' collective bargaining agreement when it used and encouraged unit members to use other than the contractual grievance procedure to seek redress from the Activity in matters covered by the grievance procedure. In resolving the grievance, the Arbitrator in particular addressed an incident cited by the Activity as supporting its grievance. This incident involved the barring by the Spanish government of an overseas teacher from her teaching location on a naval base in Spain, and management's decision to place her on enforced leave without pay instead of reassigning her to another teaching location. The Arbitrator specifically noted evidence of several letters on union stationery from the local union president to the Director of Department of Defense Dependents Schools, to the President of the United States, and to several members of Congress seeking assistance on the decision of the Spanish government to bar the teacher from her place of employment and the decision of the Activity not to reassign her. The Arbitrator further noted evidence that the local union president in his representative capacity also urged unit members to send similar appeals to such persons. On the basis of this evidence, the Arbitrator determined that these actions of the Union in seeking assistance on management's decision not to reassign the teacher violated the spirit and intent of the collective bargaining agreement and to this extent he accordingly sustained the grievance. As a remedy the Arbitrator directed as follows:

The Union is directed to inform its local Unon leaders, in writing, of their contractual obligation to utilize the contractual grievance procedure for those contractual "matters relating to their employment which are within the control of the Employer" as specified and distinguished in the body of this Decision, and to further advise them to cease and desist from taking such identifiable contractual matters, which are grievable under the Agreement, to other forums before exhausting the various levels of these prescribed, agreed upon contractual procedures.

III. EXCEPTION

In its exception the Union contends that to the extent the award has sustained the grievance and has directed the Union to cease and desist from the actions found violative of the collective bargaining agreement, the award is contrary to the First Amendment of the U.S. Constitution, 5 U.S.C. Sections 2302(b), 7211 and section 7102 of the Statute.

IV. ANALYSIS AND CONCLUSIONS

In 5 U.S.C. Section 7211, the right of Federal employees to petition Congress is unequivocally protected. That section provides that "the right of employees, individually or collectively, to petition Congress or a Member of Congress, or to furnish information to either House of Congress, or to a committee or Member thereof, may not be interfered with or denied." Section 7102 of the Statute similarly provides for the protection of certain rights of Federal employees. Specifically, section 7102 pertinently provides:

Each employee shall have the right to form, join, or assist any labor organization, or to refrain from any such activity, freely and without fear of penalty or reprisal, and each employee shall be protected in the exercise of such right. Except as otherwise provided under this chapter, such right includes the right --

(1) To act for a labor organization in the capacity of a representative and the right, in that capacity, to present the views of the labor organization to heads of agencies and other officials of the executive branch of the Government, the Congress, or other appropriate authorities(.)

Moreover, the Authority has expressly ruled under section 7102 that the legitimate conduct of an employee, acting in a representative capacity, to publicize and communicate information on issues having a direct bearing on the working conditions of unit employees enjoys the protections of the Statute. Bureau of Prisons, Federal Correctional Institution, Danbury, Connecticut, 17 FLRA 696 (1985); compare United States Forces Korea/Eighth United States Army, 17 FLRA 718 (1985) (actions found to have exceeded the bounds of protected activity).

In this case the Authority finds that the conduct of the local union president found by the Arbitrator to have violated the spirit and intent of the parties' collective bargaining agreement was conduct protected by both section 7102 of the Statute and 5 U.S.C. Section 7211. Thus, the Arbitrator's award by sustaining the grievance on the basis of such conduct and enforcing the parties' agreement to effectively direct that the Union cease and desist from such conduct constitutes restraint of and interference with protected employee rights. Consequently, the Authority finds that this portion of the award is deficient as contrary to section 7102 of the Statute and 5 U.S.C. Section 7211. /*/

V. DECISION

Accordingly, for these reasons, the award is modified to strike that portion of the award sustaining the grievance and directing a remedy.

Issued, Washington, D.C., May 12, 1986.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY

--------------- FOOTNOTES$ ---------------

(*) In view of this decision, it is not necessary or appropriate for the Authority to address the Union's First Amendment contentions. Although the Union also contends that the award is contrary to 5 U.S.C. Section 2302(b)(8), the exception provides no basis for finding the award deficient in this respect. The Union fails to establish in what manner the Arbitrator's award is contrary to section 2302(b)(8) which prohibits certain agency officials from taking specified actions against any employee as a reprisal for the disclosure of information under certain conditions.